Terytex (Nigeria) Limited V. Nigerian Ports Authority (1988)
LawGlobal-Hub Lead Judgment Report
EPHRAIM OMOROSE IBUKUN AKPATA, J.C.A.
What is perjury? Should a Judge refer a witness to the police for “investigation” when it has not been established in the proceedings before him that the witness has committed perjury? Is it the function of a Judge or that of counsel to confront a witness with his previous evidence in an earlier proceeding in order to discredit him or show that he has committed perjury? These questions have arisen in this appeal.
The appellants as plaintiffs instituted an action against Messrs Niger-bras Shipping Line Limited by a writ of summons dated 31/9/81 claiming the sum of N100,000.00 as special and general damages for the loss of the appellants’ 425 Cartons of Cotton Carded Yarn consigned to the order of the appellants on a bill of lading.
By order of the Federal High Court, the Nigerian Ports Authority, the respondents in this appeal, were joined as the second defendants. Pleadings were filed and the action proceeded to trial before Kachikwu, J. After counsel for the respective parties had addressed the court on 28/2/84, judgment was reserved for 8/5/84.
However before 8/5/84 Kachikwu J., was retired. The suit was then to be heard de novo before another Judge of the Federal High Court.
Before the suit commenced before Belgore, J., (as he then was) the appellant had discontinued against the first defendant because they had paid the appellants the sum of N20,000.00 for the loss of 108 out of the 425 Cartons Cotton Yarn short-landed.
The trial commenced before Belgore, J., on 6/3/85 when one Wale Lawal from the Customs testified as PW.1 and tendered the Bill of Entry Exhibit “A”. Godspower Mbakwe testified as PW.2. After his evidence-in-chief he was cross-examined by counsel for the defendants/respondents. I reproduce his answers under cross-examination:
“I am not working with the company now. I worked for the company for one year. I worked there from January – December, 1980. From 15th January to 18th December, 1980. I am now working with the Bright Stars Industries Ltd. as Claims Officer. As a Claims Officer to follow up with claim matters. The claim arose 19th March, 1981. I was called back to settle the claim.”
It does not appear that cross-examination had been completed when the learned trial Judge cut-in and observed thus:
“I observe that this witness is giving contrary evidence not only in this court now but what he says now was different from what he testified before Kachikwu Judge when he was trying this case. I feel like referring the case to the Police to investigate issue of perjury. The case is adjourned to 6th of May for mention. In the meantime the witness will be taken to C.I.D.”
Against the order, the plaintiff has appealed to this court. One ground of appeal was filed with three heads of particulars of error at law, misdirection at law and wrong exercise of judicial powers. The ground without the said particulars read:
“The learned trial Judge erred at law and misdirected himself at law when after the 2nd plaintiff’s witness had given evidence in chief before him and was under necessary cross-examination by the defence counsel suo motu, made use of the record of the evidence of 2nd plaintiffs witness given in an earlier civil proceedings between the same parties before his retired learned brother Chief F. O. Kachikwu to contradict the evidence of the 2nd plaintiffs witness as to how long he had worked in the plaintiff’s company and consequently wrongly erred at law in the exercise of his Judicial Powers in procuring and/or committing the 2nd plaintiff’s witness to Force C.I.D. Alagbon Close, Lagos for necessary investigation for an alleged perjury without any formal charge.”
The respondents did not take part in this appeal although from available records they appear to have been served with relevant processes. Learned counsel for the appellant, Mr. F.C. Mbadiwe, formulated three issues for determination in his brief of argument. They are:
“(i) Whether the learned trial Judge was right to make use suo – motu in civil proceedings commenced de-novo before him, of the evidence of the Appellants 2nd witness given in an earlier civil proceedings between the same parties before his retired learned brother CHIEF P.C. KACHIKWU without prejudice to the Appellant’s case.
(ii) Whether the learned trial Judge was right in proceedings commenced de-novo before him to commit the Appellant’s 2nd witness without a formal charge to the FORCE CID IKOYI, for necessary investigations for an alleged perjury for a contrary evidence not put to the witness but said to have been given by the Appellant’s 2nd witness before his retired learned brother, Chief P.C. Kachikwu in a previous proceeding between the same parties.
(iii) Whether the learned trial Judge had jurisdiction to order the 2nd witness for the Appellants to be taken into custody from the Court to the Force C.I.D. Ikoyi, for necessary investigation for an alleged perjury without a warrant.”
Learned counsel adopted his brief of argument and made oral submissions.
It is obvious to me that summary procedure in perjury is governed by Section 274 of the Criminal Procedure Act. Sub-section (1) states:
“(1) If it appears to a court that a person has been guilty of perjury in any proceeding before it, the court, subject to the provisions of sub-section (2) and in addition in the case of a magistrate to sub-section (3), may –
(a) commit him for trial upon information of perjury and bind any person by recognizance to give evidence at his trial, or
(b) try him summarily as for a contempt of court and if he is found guilty commit him to prison for six months or fine him –
(i) if in the High Court, a sum of One Hundred Naira, and
(ii) if in the magistrate’s court, a sum of Fifty Naira.”
It is thus clear that only two options are opened to a trial Judge or magistrate in dealing with a witness for perjury summarily.
It does not appear to me that a judge is not competent to refer a witness to the police to investigate issue of perjury under Section 274 of the Criminal Procedure Act. Besides if the learned trial Judge had intended to proceed under Section 274, he ought to have taken the wise precaution to postpone action until the close of the case under trial. [See Rex v. Michael Nweze (1940) 6 W.A.C.A. 190]. This is so because convicting a witness for perjury in the course of proceeding may prejudice a fair trial of the case before the trial Judge.
By Section 117 of the Criminal Code: “Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then pending in that proceeding or intended to be raised in that proceeding is guilty of an offence which is called perjury.” As rightly pointed out by learned counsel, a person said to have committed the offence of perjury contrary to Section 117 and punishable under Section 118 of the Criminal Code cannot be arrested without a warrant and a warrant of arrest is not issued for purposes of investigation by the police but for purposes of answering to a charge of perjury.
If the learned trial Judge had wanted to proceed under Section 274 of the Criminal Procedure Act or had wanted the police to proceed under section 117 of the Criminal Code he ought to have confronted the witness with the said previous evidence said to be false and should have given him the opportunity of explanation and possibly the correction of misapprehension as to what had been in fact said or meant [See Chang Hang Kiu v Piggot (1909) A.C. 312 at 316]. If he was not satisfied with the explanation he could then proceed summarily under Section 274 or refer the relevant proceedings to the law officers that is, the police or the Director of Public Prosecutions, who would decide whether or not to prosecute. If the prosecuting authorities decide to prosecute, a warrant of arrest would be issued. The Judge should not direct that the witness be prosecuted. It is entirely for the law officers to decide who should be charged and with what offence. [See G.A. Akhiwu v Principal Lotteries Officer, Mid-Western State & Anor. (1972) 1 All N.L.R. 229]. Admittedly, the learned trial Judge did not direct that P. W.2 be prosecuted. He however ought not to have referred the witness to the police as he did, when it was not established that he had in fact committed perjury. This was prejudicial to the appellants’ case as the trial Judge had by implication rejected the evidence of the witness without giving him the opportunity to clarify issues.
Learned counsel for the appellant submitted that it was not the function of the learned trial Judge to bring out the question of contradiction in the evidence of the witness but that of counsel. I agree with him to a large extent. Generally in a civil case, it is not the function of the Judge to discredit a witness called by one party by confronting him with his previous contrary evidence before another Judge. That role belongs to counsel for the opposing party. It is safe to say that a Judge’s intervention must be governed by the bounden duty to see that a fair trial is enjoyed by the parties and that justice is not only done but seen to have been done. In the case of R. v. Frazer & Anor. (1956) 40 Cr. App. R. 160 at page 163, Lord Goddard L.C.J. made the point that:
“If the prosecution have information in their possession which shows that the evidence which a witness called for the prosecution has given is in flat contradiction of a previous statement which he has made and so entitles the prosecution to cross-examine they should apply for leave to cross-examine and not leave it to the Judge to do so because it is counsel’s duty to cross-examine in such circumstances. If he has not done so, the Judge has to do it. That is not right, because it may look as if the Judge is taking sides, but he cannot help intervening in such circumstances because it is his duty to see that justice is done.”
While the above observation is also applicable in civil cases, unlike in criminal cases where the Judge may intervene in the interest of the liberty of an accused, he may not intervene in civil cases to strengthen the case of one party against the other. Even then there is nothing in the record to show that learned counsel for the respondents had finished cross-examining P.W.2 before the learned trial Judge intervened in this case.
Besides, for there to be perjury, the false testimony must be material to the issue as required by Section 117 of the Criminal Code. It must be shown that the false testimony was given knowingly and not by inadvertence or mistake. [See Ebun Omoregie v. Director of Public Prosecution (1962) 1 All N.L.R. 167].
Therefore, the observation of the learned trial Judge that “this witness is giving contrary evidence not only in this court now but what he says now was different from what he testified before Kachikwu Judge,” is not sufficient to raise issue of perjury. The alleged “contrary” or “different” evidence must not only be false, they must be shown to relate to “any matter which is material to any question then pending in the proceedings.” From the notes of the learned trial Judge there is nothing to suggest that he took into consideration the vital elements of the offence of perjury before he decided to refer the matter to the police.
It is necessary to emphasise the use to which evidence given in a previous case may be made. As stated by Uwais, J.S.C., in Ayanwale v. Atanda (1988) 1 N.W.L.R. (Part 68) 22 at 29:
“The legal position, which has been stated on numerous occasions, is that evidence given in a previous case is not admissible by the court trying a latter case except where Section 34(1) of the Evidence Act is applicable. The best use that could be made of such evidence is for cross-examination as to credit of such a person or persons called to testify in the later case. See Motunde Shonekan v. Gladys Ayodele Smith (1964) 1 All N.L.R. 168; Momodu Ajala v Samuel Awodele and Another (1971) 1 N.M.L.R. 127; Andrew Masade v Cecilia Isikhuemen (1978) 2 S.C. 87 and Babatunde Jemi Alade v. Lawani Aborishade (1960) 5 F.S.C. 167.”
In my view the learned trial Judge lacked competence and was wrong to have referred the case to the police at that stage and to have ordered that “the witness will be taken to C.I.D.” The appeal is therefore allowed, the order of the learned trial Judge made on 6th March, 1985 is set aside. The substantive civil case should be heard de novo before another Judge of the Federal High Court for necessary hearing on the merit. No order as to costs will be made against the respondents as the order complained of was made suo motu by the learned trial Judge and not at the instance of the respondents.
Other Citations: (1988) LCN/0043(CA)
